Carrillo, Jr. v. Paramo

Filing 7

ORDER to SHOW CAUSE, signed by Magistrate Judge Gary S. Austin on 6/19/15: 30-Day Deadline. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
ROBERT CARRILLO, JR.,

11

Case No. 1:15-cv-00624-GSA-HC

Petitioner,

12

ORDER TO SHOW CAUSE

v.

13

DANIEL PARAMO,

14

Respondent.

15
16

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

17

18 pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the Magistrate
19 Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 6).
On April 19, 2015, Petitioner filed the instant petition in this Court. 1 (Pet., ECF No. 1).

20

21 Petitioner was convicted in 1997 in the Kern County Superior Court of three counts of robbery,
22 one count of grand theft, one count of kidnapping, one count of false imprisonment, one count of
23 vehicle theft of a cab, possession of a firearm by a felon, possession of a sawed-off rifle, and
2
24 enhancements. (ECF No. 1 at 72, 89-90). On October 2, 1997, Petitioner was sentenced to 198

25 years to life, of which 75 years was stayed. (ECF No. 1 at 90). After timely appeal and upon
26
1

Pursuant to the mailbox rule, the Court deems the petitions filed on the date they were signed and presumably

27 handed to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988); Huizar v. Carey, 273 F.3d
28

1220, 1222 (9th Cir. 2001).
2
Page numbers refer to the ECF pagination.

1

1 two remitturs, Petitioner’s sentence was reduced to 168 years to life. (ECF No. 1 at 97-99).
2

I.

3

DISCUSSION

4

A. Preliminary Review of Petition

5

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

6 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not
7 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.
8 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ
9 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to
10 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th
11 Cir. 2001). In Herbst v. Cook, the Ninth Circuit concluded that a district court may dismiss sua
12 sponte a habeas petition on statute of limitations grounds so long as the court provides the
13 petitioner adequate notice of its intent to dismiss and an opportunity to respond. 260 F.3d at
14 1041-42.
15

B. Limitation Period for Filing a Petition for Writ of Habeas Corpus

16

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

17 of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas
18 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059,
19 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118
20 S.Ct. 586 (1997). As the instant petition was filed on May 19, 2014, it is subject to the
21 provisions of the AEDPA.
22

The AEDPA imposes a one year period of limitation on petitioners seeking to file a

23 federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244,
24 subdivision (d) reads:
25
26
27
28

(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of –
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
2

1

review;

2

(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;

3
4

(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or

5
6

(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

7
8

(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.

9
10
11

28 U.S.C. § 2244(d).

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

In most cases, the limitation period begins running on the date that the petitioner’s direct
review became final. Petitioner was sentenced on October 2, 1997. He appealed, and the 5th
appellate District issued a decision on April 27, 2000, reversing Petitioner’s conviction in counts
2 and 5 and remanding the matter for resentencing. (ECF No. 1 at 98). On March 11, 2002,
Petitioner was sentenced to 173 years to life by the trial court. (ECF No. 1 at 98). Petitioner
appealed that new sentence, and the 5th Appellate District modified Petitioner’s sentence to 168
years to life. (ECF No. 1 at 99). The 5th Appellate District directed the trial court to file an
amended abstract of judgment consistent with the opinion. (ECF No. 1 at 99). Based upon the
documentation that Petitioner presented, it appears that the 5th Appellate District issued its
decision in 2003. (ECF No. 1 at 90, 97-101). Pursuant to Cal. Rules of Court, rules 24(a), 28(b),
and 45(a), Petitioner had forty days to file a petition for review in the California Supreme Court
after the appellate court filed its opinion. It appears that Petitioner did not file a petition for
review in the California Supreme Court.3 In this case, it appears that the trial court issued an
amended judgment in 2003 upon direction of the 5th Appellate District and after Petitioner did
not appeal to the California Supreme Court, and therefore, the limitations period began to run in

27
3

It appears that the only filing by Petitioner in the California Supreme Court was his petition for writ of habeas

28 corpus in case number S217724 which was denied on June 11, 2014. (ECF No. 1 at 73, 103).
3

1 2003.
2

Petitioner had one year from the start of the limitations period, absent applicable tolling,

3 in which to file his federal petition for writ of habeas corpus. Therefore, absent applicable
4 tolling, Petitioner had to file his federal petition for writ of habeas corpus in 2004. However,
5 Petitioner delayed filing the instant petition until April 19, 2015, over ten years after the
6 expiration of the statute of limitations. Therefore, Petitioner’s federal petition is untimely absent
7 any applicable tolling.
8

Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed

9 application for State post-conviction or other collateral review with respect to the pertinent
10 judgment or claim is pending shall not be counted toward” the one-year limitations period. 28
11 U.S.C. § 2244(d)(2).

Nevertheless, state petitions will only toll the one-year statute of

12 limitations under § 2244(d)(2) if the state court explicitly states that the post-conviction petition
13 was timely or was filed within a reasonable time under state law. See Pace v. DiGuglielmo, 544
14 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Petitioner is not entitled to any statutory
15 tolling, because his collateral challenges in state court were filed after the expiration of the one16 year limitations period.

It appears that Petitioner filed his first state habeas petition on

17 September 3, 2013, in Kern County Superior Court. (ECF No. 1 at 89). Thus, Petitioner’s state
18 habeas petitions did not toll the limitations period or operate to revive it. See Green v. White,
19 223 F.3d 1001, 1003 (9th Cir. 2000) (holding that Petitioner is not entitled to tolling where the
20 limitations period has already run).
21

Therefore, it appears that the limitations period expired in 2004, and absent equitable

22 tolling, the instant habeas petition filed on April 19, 2015, is untimely.
23

C. Motion to Expedite the Proceedings

24

In his petition, Petitioner requests that his petition be treated on an expedited basis. The

25 Court will treat this request as a motion to expedite the proceedings. As Petitioner correctly
26 states, the instant action is pending before this Court. However, the Court does not have an
27 expedited calendar. Petitioner is advised that the Court acts to resolve all pending cases in the
28 most efficient manner possible. The Court’s docket of pending cases is substantial, and the

4

1 Court must act first on those matters that have been pending the longest. Therefore, Petitioner’s
2 motion to expedite the proceedings must be denied.
3

II.

4

ORDER

5
6

Accordingly, IT IS HEREBY ORDERED that Petitioner’s motion to expedite the

7 proceedings is DENIED and Petitioner is ORDERED to SHOW CAUSE within thirty (30) days
8 of the date of service of this Order why the petition should not be dismissed for violating the
9 limitations period of 28 U.S.C. § 2244(d).
10

Petitioner is forewarned that failure to follow this order will result in dismissal of the

11 petition pursuant to Fed. R. Civil Proc. § 41(b) (A petitioner’s failure to prosecute or to comply
12 with a court order may result in a dismissal of the action, and the dismissal operates as an
13 adjudication on the merits.).
14
15
16
17

IT IS SO ORDERED.
Dated:

June 19, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28

5